Price gouging enforcement and litigation is front and center for company counsel and business managers nationwide. Our weekly round up highlights some of the most relevant news and information to our clients and friends.

Price Gouging Update in Oregon

According to the Oregon Department of Justice, the Attorney General’s consumer hotline and price gouging hotline have received over 900 complaints relating to price gouging and other pandemic consumer issues. Oregon’s price gouging law states that “[a] merchant or wholesaler may not sell or offer to sell essential consumer goods or services for an amount that represents an unconscionably excessive price during a declaration of an abnormal disruption of the market.” Or. Rev. Stat. § 401.965(2). A price is unconscionably excessive if “the amount charged for essential consumer goods or services exceeds by 15 percent or more the price at which the goods or services were sold or offered for sale by the merchant or wholesaler in the usual course of business immediately prior to or during a declaration of an abnormal disruption of the market.” Or. Rev. Stat. § 401.965(3). Although there does not appear to be much enforcement recently, Oregon has taken action over the course of the pandemic. A spokeswoman for the Oregon DOJ previously stated that “[w]e will typically contact the company or place of business, and if we are not satisfied we will send a cease-and-desist letter.”

New Jersey Governor Signs Legislation Limiting Delivery Service Fees

On June 26, 2020, New Jersey Governor Phil Murphy signed legislation limiting the service fees third-party delivery apps and websites can charge restaurants during the COVID-19 state of emergency. The law prohibits service fees greater than 20 percent of the cost of the individual order. The law also prohibits a restaurant from charging greater than 10 percent of the cost of the individual order if the order is delivered by a restaurant employee or other party that has contracted directly with the restaurant to provide delivery services. Governor Murphy stated that “[t]hrough this legislation, now law, dining establishments throughout our state will receive much-needed relief from excessive service fees if public health necessitates the return of dine-in restrictions.” These restrictions remain in effect until the first day of the third month following any state of emergency declared by the Governor in response to COVID-19 that restricts restaurant dine-in service to less than 25% of the maximum capacity allowed by law.

Michigan Attorney General Continues to Fight Price Gouging

As of July 1, 2020, Michigan Attorney General Dana Nessel’s office has received 4,400 price gouging complaints. Most of the complaints relate to price gouging of grocery items, sanitizers, and face masks. However, the month of June saw only a 2.6 percent increase in complaints, from 4,279 on June 1, to 4,391 on June 30. This number compares to the large increase of complaints received during the month of April, from 2,506 on April 1, to 3,756 on May 1. According to AG Nessel, “we will continue to evaluate the many complaints reported to my office and take action on as many targets as possible.”

New York City Department of Consumer and Worker Protection Combats Price Gouging

On June 26, 2020, the New York City Department of Consumer and Worker Protection (DCWP) announced an agreement with Metro Drugs over price gouging allegations. According to DCWP, Metro Drugs agreed to provide restitution to consumers who overpaid for face masks, disinfecting wipes, and gloves. In addition to restitution, Metro Drugs agreed to pay a $25,900 fine. “From the beginning of the COVID-19 pandemic, our message has been loud and clear—price gouging will not be tolerated in NYC,” said DCWP Commissioner Lorelei Salas. “We are pleased we were able to reach a resolution with Metro Drugs that ensures consumers can still come forward to claim restitution. Face masks have proven to be lifesaving and we remain vigilant in ensuring that New Yorkers are not overcharged as the city reopens and we head back to work.” Since the beginning of the pandemic, the DCWP has received over 11,000 complaints and issued more than 11,300 violations. Under the DCWP’s emergency rule – in effect until August 25 – businesses are prohibited from charging 10 percent or greater for any personal or household good or service that is used to limit or prevent the treatment or spread of COVID-19. Violators can face a fine of up to $500 per item or service, but may provide proof to the DCWP of any increased costs.

House Committee on Energy & Commerce Requests Information on Potential Price Gouging

On July 1, 2020, the Energy and Commerce Committee Chairman Frank Pallone, Jr (D-NJ), requested information from ten companies and a trade association regarding their pricing of COVID-19 tests. According to the Committee, the request comes after “an initial examination that has yielded disturbing information about the price of COVID-19 tests.” The Committee has received information in which some providers are charging up to $6,000 for just one COVID-19 test. “These examples we have received, if accurate, are unconscionable and clearly excessive,” Rep. Pallone wrote in the information requests to the companies. Among the information Rep. Pallone requested was information regarding how much the companies are charging for diagnostic and serological tests, along with whether companies have received any complaints regarding the tests and related items and services.

Photo of Christopher E. Ondeck Christopher E. Ondeck

Chris Ondeck is co-chair of the Firm’s nationwide Antitrust Group. He represents clients in civil and criminal antitrust litigation, defending mergers and acquisitions before the U.S. antitrust agencies, defending companies involved in government investigations, and providing antitrust counseling.

Chris has handled antitrust matters…

Chris Ondeck is co-chair of the Firm’s nationwide Antitrust Group. He represents clients in civil and criminal antitrust litigation, defending mergers and acquisitions before the U.S. antitrust agencies, defending companies involved in government investigations, and providing antitrust counseling.

Chris has handled antitrust matters for clients in a number of industries, including advertising, aerospace, alcoholic beverages, appliances, building materials, consumer products, defense, franchise, medical devices, metals, mining, natural resources, oil and gas, packaging, pharmaceuticals, software and telecommunications. He also has developed substantial experience advising clients regarding the application of the antitrust laws to the pharmaceutical industry, the agriculture industry, trade associations and the energy industry.

Photo of John R. Ingrassia John R. Ingrassia

When competition or antitrust questions arise, John Ingrassia is sought out for his knowledge, reputation and credentials.

John is a recognized authority on Hart-Scott-Rodino antitrust merger review, and for more than 20 years has counselled businesses facing the most challenging antitrust issues and…

When competition or antitrust questions arise, John Ingrassia is sought out for his knowledge, reputation and credentials.

John is a recognized authority on Hart-Scott-Rodino antitrust merger review, and for more than 20 years has counselled businesses facing the most challenging antitrust issues and helped them stay out of the crosshairs — whether its distribution, pricing, channel management, mergers, acquisitions or joint ventures.

John is a senior counsel at the Firm, advising on the full range of antitrust matters in diverse industries, including chemicals, pharmaceutical, medical devices, telecommunications, financial services and health care, among others.  His practice focuses on the analysis and resolution of antitrust issues related to mergers, acquisitions, and joint ventures, and the analysis and assessment of pre-merger notification requirements. John has extensive experience with the legal, practical, and technical requirements of merger clearance and is regularly invited to participate in Federal Trade Commission and bar association meetings regarding Hart-Scott-Rodino practice issues.

Photo of Kelly Landers Hawthorne Kelly Landers Hawthorne

Kelly Landers Hawthorne is an associate in the Litigation Department.

While at Columbia, she served as an articles editor of the Columbia Journal of Law & the Arts and was involved with the Lawyering in the Digital Age Clinic.  She also worked as…

Kelly Landers Hawthorne is an associate in the Litigation Department.

While at Columbia, she served as an articles editor of the Columbia Journal of Law & the Arts and was involved with the Lawyering in the Digital Age Clinic.  She also worked as a judicial intern for the Honorable Sandra Townes of the United States District Court for the Eastern District of New York.

Kelly is a Teach For America alumnus and taught middle school special education and math in Washington, D.C. prior to law school.

Photo of Nathaniel Miller Nathaniel Miller

Nat Miller is an associate in the Litigation Department.

Nat earned a J.D. degree from NYU School of Law, where he was a Managing Editor of the Journal of Law & Business, and a B.A. from Harvard University. While at NYU Law, he…

Nat Miller is an associate in the Litigation Department.

Nat earned a J.D. degree from NYU School of Law, where he was a Managing Editor of the Journal of Law & Business, and a B.A. from Harvard University. While at NYU Law, he worked as a research assistant for Professor Arthur R. Miller on his treatise, Federal Practice and Procedure. After law school, Nat served as a law clerk to the Honorable Claria Horn Boom of the Eastern and Western Districts of Kentucky.

Photo of Nicollette R. Moser Nicollette R. Moser

Nicollette Moser is an associate in the Litigation Department and a member of the Antitrust Group and the Price Gouging team.

Nicollette represents clients on matters related to mergers and acquisitions, allegations related to unlawful conspiracy and anticompetitive agreements, price fixing claims and…

Nicollette Moser is an associate in the Litigation Department and a member of the Antitrust Group and the Price Gouging team.

Nicollette represents clients on matters related to mergers and acquisitions, allegations related to unlawful conspiracy and anticompetitive agreements, price fixing claims and price gouging class actions. She also counsels clients on state Attorneys General and Department of Justice investigations regarding price gouging allegations.

Nicollette is a regular contributor to Proskauer’s commercial litigation blog, Minding Your Business.

Nicollette earned her J.D. from Georgetown University Law Center, where she was as an editor of the Georgetown Journal of Law & Public Policy. While at Georgetown, she served as an intern to the Hon. Craig Iscoe of the Superior Court of the District of Columbia. In addition, Nicollette was a law clerk with the House Judiciary Committee’s Subcommittee on Regulatory Reform, Commercial and Antitrust Law.

Photo of Jennifer Tarr Jennifer Tarr

Jennifer E. Tarr is a senior associate in the Litigation Department, and a member of Proskauer’s Sports Law and Antitrust Groups. She regularly litigates on behalf of sports leagues and counsels clients active in the sports industry on a variety of matters, including…

Jennifer E. Tarr is a senior associate in the Litigation Department, and a member of Proskauer’s Sports Law and Antitrust Groups. She regularly litigates on behalf of sports leagues and counsels clients active in the sports industry on a variety of matters, including issues pertaining to antitrust, team relocation, league governance, contract disputes, sponsorship and fan-league relationships.

In addition to sports antitrust work, Jennifer also has experience counseling and defending clients on issues related to mergers and acquisitions, claims related to unlawful conspiracy and anticompetitive agreements, monopolization claims, and price fixing claims. Jennifer is also a member of the firm’s price gouging team.

In 2019, she was a panelist on the Environmental Law Institute’s Managing Private Sector Environmental Initiatives panel, where she spoke about the Antitrust Implications of Corporate Environmental Collaborations.

Jennifer maintains an active pro bono practice and is a member of the Firm’s Pro Bono Committee. She received Proskauer’s Golden Gavel Award for excellence in pro bono work in 2018 and 2019.

Prior to joining Proskauer, Jennifer clerked for the Honorable Lorna G. Schofield on the United States District Court for the Southern District of New York. She also was a Staff Attorney at the Environmental Law & Policy Center, where she represented clients as lead counsel in litigation before multiple federal district and appellate courts and in federal mediation.

While in law school, Jennifer was a member of the Harvard Legal Aid Bureau, one of three honors societies at the law school and the nation’s oldest student-run legal services center. In that capacity, she argued and won a case of first impression before the Massachusetts Supreme Judicial Court. She also argued over 20 motions in state trial court and successfully represented clients in federal mediation and before federal administrative tribunals.